April 18, 2014
In Google Books appeal, Author’s Guild calls for the creation of something that already exists: a National Digital Library
by Sal Robinson
The Authors Guild appeal against the dismissal of the Google Books lawsuit got a shot in the arm yesterday when a number of major authors and organizations came out in support of it.
Malcolm Gladwell, Margaret Atwood, J.M. Coetzee, Yann Martel, Peter Carey, Ursula Le Guin, Michael Pollan, and Karen Russell were among the authors who filed a friend-of-the-court brief, arguing against Judge Denny Chin’s fall 2013 decision that Google’s book-scanning activities were “transformative” and covered by fair use. Their brief (available here) is a point-by-point takedown of Google Books and the unauthorized scanning that made it possible. It was joined by complementary briefs filed by the International Publishers Association, the American Society of Journalists and Authors, the Motion Picture Association of America, the Mystery Writers of America, the National Association of Science Writers, the Society of Children’s Book Writers & Illustrators, and a number of other writers’ and artists’ associations.
This came on the heels of the Guild’s formal appeal, which was made on April 11th. But it’s unclear whether, even with star power, it’s going to make much of a difference. Skepticism has so far prevailed. James Grimmelman, law professor at the University of Maryland and frequent commentator on the case, gave his opinion in a Library Journal article:
They [the Authors Guild] have made it quite clear that they view the last ten years of fair use case law as a giant mistake, and they would like it reversed… It’s important not to rule out the chance that they could succeed, but their view is in tension with what is very well established case law.
But there’s one line in the Guild’s appeal that’s of particular interest when it comes to thinking about the future of large-scale digital collections: at the end of it, they call for Congress to establish a National Digital Library that would one-up Google Books on a number of fronts. The library they describe would act as a rights-protecting organization like ASCAP, giving control back to authors and assuring that they’re paid for digital rights licensing. It would also allow readers to see “full book pages, not mere ‘snippets,’” which is a neat bit of owning the thing you’d vilified.
And yet, a National Digital Library of a sort already exists. It’s the Digital Public Library of America and, though it is a very different organization than the one the Guild proposes, it’s not as if there are no viable complements or alternatives to Google Books; over the past few years, the DPLA has diligently been putting together a central site that is oriented for the public good in just the way authors and publishers are rightfully worried that Google Books is oriented, in the end, for Google’s good.
The DPLA, which we’ve written about here and here, officially launched its website this time last year. It is not a Non-Profit Google Books: it doesn’t host content directly, instead pointing users to partner institutions like libraries, museums, and historical societies that are content repositories. It’s an organizer of metadata above all, and at the moment, precisely because of minefields like the Google Books lawsuit, it mostly points to public domain material. And it’s probably fundamentally flawed in the Guild’s eyes: one of its major partners is the HathiTrust, which was the nonprofit beneficiary of Google’s book scanning (and in fact the Guild also sued the HathiTrust, a suit which is also in appeal).
But if you’re looking for an organization that has been building the underlying structure for a digital books resource on a national scale, with close, careful attention to rights status, with a focus on public interest instead of private profit, and with information about the hundreds of thousands of out of print and orphan works that particularly concern the authors represented by the Guild, the DPLA is it.
Of course, it may be that the Authors Guild doesn’t really want a National Digital Library; a library isn’t in the business of looking after authors’ profits, or anyone’s profits, in the manner that the Guild clearly feels is necessary. It doesn’t, however, seem like an achievable goal to call on Congress to create something as ambitious as a National Digital Library without looking around and realizing that something very much like it is already here.
Sal Robinson is an editor at Melville House. She's also the co-founder of the Bridge Series, a reading series focused on translation.